Judge hears arguments in Texas abortion-sonogram fight

State lawyers argue for sonogram lawJudge asked not to toss Texas legislation if part is found to be unconstitutional

GARY SCHARRER, AUSTIN BUREAU |
July 6, 2011

AUSTIN – Lawyers for the state urged a federal judge on Wednesday not to throw out Texas' entire abortion-sonogram law even if he found parts of it unconstitutional.

"The severability clause cannot be ignored and must be applied," Assistant Texas Attorney General Erika Kane told the judge.

The legislation states that if any provision in the law is found by a court to be invalid, the remainder may not be affected.

U.S. District Judge Sam Sparks, of Austin, offered little indication how he will rule in a request for an injunction to stop Texas from implementing the new law requiring doctors to provide images of a fetus and sounds of a heartbeat before providing an abortion.

The law is more extreme than any in the country because it requires doctors to engage in speech far beyond typical "informed consent" topics such as risks, benefits and alternatives for abortions, argued Bebe Anderson, senior lawyer for the New York-based Center for Reproductive Rights.

Anderson reminded Sparks that a landmark U.S. Supreme Court abortion ruling in Planned Parenthood v. Casey did not force physicians to provide women with unwanted images, verbal descriptions or auditory sounds of the fetus.

Clarity is 'vital'

The Texas law, which goes into effect on Sept. 1 and applies to abortions starting Oct. 1, does not obligate women to look at fetal images or to hear the fetal heartbeat.

Sparks indicated some discomfort with portions of the bill critics consider vague, particularly those in which physicians could be charged with a misdemeanor crime, fined $10,000 and lose their medical licenses if they run afoul of the law. Sparks said he would rule before the new law takes effect.

"Because of the risk of severe penalties, it's vital that there be clarity," Anderson argued.

For example, she said, the law requires a physician to provide a woman a verbal explanation of the ultrasound images "in a manner understandable to a lay person" but does not offer guidance on what language and terms a physician can use.

"The law is not vague," Kane told Sparks.

The statute simply obligates abortion providers, she said, to perform a sonogram on patients seeking abortions; offer those patients an opportunity to view the images and listen to the heartbeat, if one is present; orally explain the sonogram images to patients, unless the patient is a minor, pregnant as a result of rape or incest, or carrying a fetus with an irreversible medical condition or abnormality.

The sonogram also must be performed at least 24 hours before an abortion. The wait would be shortened to two hours if a patient lives 100 miles or more from the nearest abortion provider.

"All of these requirements are easy to understand," attorneys for the state said in their written response to the legal challenge.

Purpose of the law

The Austin-based judge appeared uncomfortable with language in House Bill 15 suggesting that doctors provide explanations "understandable to a lay person." He scoffed at the "everybody knows that" response to questions about the definition of a lay person's understanding.

Sparks noted he spent 30 years defending doctors and hospitals while practicing law in El Paso before President George H.W. Bush appointed him to the federal court. He said it seemed obvious that the purpose of the bill was to limit abortions.

Kane said the purpose is "to provide more information to women prior to the procedure."

There are about 80,000 abortions per year in Texas.

Sparks gave both sides 15 days to provide additional evidence and arguments.